"The Supreme Court, returning from its summer recess, on Tuesday granted review of 8 new cases..."

SCOTUSblog reports. One case is a copyright dispute over the screenplay for Raging Bull (which came out in 1980).

For a moment there, I thought I'd failed to notice that the first Monday in October had come up again. (Why were there not a bunch of Supreme Court preview stories?) But it's not Monday. It's Tuesday, and the first day in October, so the first Monday is next Monday. The court is just back, amusingly enough on the first day of the federal government shutdown, which is all very abstruse.

It's the last day of the Supreme Court term.

Get ready to talk about same-sex marriage. Here's the live-blogging at SCOTUSblog. The action starts at the top of the hour.

UPDATE 1: DOMA. 5-4. Roberts and Scalia and Thomas and Alito dissenting. "DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment." "DOMA singles out a class of persons deemed by a State entitled ot [sic] recognition and protection to enhance their own liberty."

UPDATE 2: Here's the PDF of the opinion in Windsor. From the Scalia dissent, something I found looking for whether the majority applied heightened scrutiny:

The majority opinion need not get into the strict-vs.-rational-basis scrutiny question, and need not justify its holding under either, because it says that DOMA is unconstitutional as “a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution,” ante, at 25; that it violates “basic due process” principles, ante, at 20; and that it inflicts an “injury and indignity” of a kind that denies “an essential part of the liberty protected by the Fifth Amendment,” ante, at 19. The majority never utters the dread words “substantive due process,” perhaps sensing the disrepute into which that doctrine has fallen, but that is what those statements mean.

UPDATE 3: From Kennedy's majority opinion, there's a discussion of federalism, but it's not the basis of the opinion:

[I]t is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.

UPDATE 4: From the Roberts dissent:

At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry.

Kennedy's opinion doesn't use the word "bigotry." It says:

The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.

UPDATE 5: The next case isn't about ssm. A unanimous opinion in Sekar, written by Scalia, about the Hobbs Act: "Attempting to compel a person to recommend that his employer approve an investment does not constitute the obtaining of property from another under the Hobbs Act."

UPDATE 6:  The Prop 8 case is resolved on the standing ground,  "line up is 5-4: Kennedy dissents, joined by Thomas, Alito, and Sotomayor.... " The decision of the Ninth Circuit is vacated and remanded." Scalia provides the 5th vote with the liberal Justices. [ADDED: No, Sotomayor is also dissenting, and Roberts is in the majority. So it's a mix.] From the opinion: "We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here."

UPDATE 7: Here's Hollingsworth v. Perry, PDF, the Prop 8 case, written by the Chief Justice.

For there to be... a case or controversy, it is not enough that the party invoking the power of the court have a keen interest in the issue. That party must also have “standing,” which requires, among other things, that it have suffered a concrete and particularized injury.

That's a totally well-established statement about standing, as most lawyers know (I hope!)

UPDATE 8: The lack of standing happened AFTER the District Court ruled Prop 8 unconstitutional. The losing party, California Governor Schwarzenegger, decided not to appeal, to accept the result, so only what the Circuit Court did must go.

UPDATE 9: Roberts, in Hollingsworth, says that without the governor as a party, the case continued with individuals who had intervened but were not ordered by the district court to "to do or refrain from doing anything." So there was nothing "personal and individual" about the case for them. They argued that they had a "''"unique," "special," and "distinct" role in the initiative process — one "involving both authority and responsibilities that differ from other suporters of the measure."'” But Roberts said that interest only had to do with "the process of enacting the law," nothing that came after that. "Article III standing 'is not to be placed in the hands of "concerned bystanders," who will use it simply as a "vehicle for the vindication of value interests."'"

Another day of Supreme Court excitement.

The place to hang out is SCOTUSblog, which live-blogs it, or here, where I quote, paraphrase, and snark, and you can comment.

UPDATE 1: Koontz, written by Alito. "The government's demand for property from a land use permit applicant must satisfy the Nolan and Dolan requirements even when it denies the permit." 5-4 in the most predictable 5-4 pattern.

UPDATE 2: Next, a case we talked about here, Adoptive Couple v. Baby Girl. This, too, is written by Justice Alito. "Assuming for the sake of argument that the biological father is a parent under the Indian Child Welfare Act, neither of the two sections at issue bars the termination of his parental rights." Thomas and Breyer have concurring opinions. Scalia has a dissenting opinion, for himself alone. Sotomayor also dissents, with Ginsburg and Kagan. And Scalia joins the Sotomayor dissent in part.

UPDATE 3: Here's the PDF for Adoptive Couple. To jump to what Scalia says:

The Court’s opinion, it seems to me, needlessly demeans the rights of parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is “in the best interest of the child.” It sometimes is not; he would be better off raised by someone else. But parents have their rights, no less than children do. This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection.

UPDATE 4: Huge: "Section 4 of the Voting Rights Act is unconstitutional. Its formula can no longer be used as a basis for subjecting jurisdictions to preclearance." This is Shelby County, written by Chief Justice Roberts. "Thomas concurs. Ginsburg dissents, joined by Breyer Sotomayor, and Kagan.... Section 4 is unconstitutional in light of current conditions. In 1966, the formula was rational in both practice and theory." [ADDED: It's 5-4, again, the typical conservative/liberal split, and Thomas — along with Scalia, Kennedy, and Alito — joins the Chief.]

UPDATE 5: Here's my discussion of the oral argument from last March: "[C]ongressional support for reauthorizing the act has increased over the years, even though the need for it has lessened.... Scalia is saying the Court needs to act because there is a dysfunction in the political process that keeps Congress from looking rationally at the actual need for the remedy that made so much sense back in 1965. Breyer's response is: Congress is still in the middle of doing what was once badly needed, it's not obvious that the endpoint has been reached, and therefore it's not time yet for the Court to act." Apparently, the majority decided it was time.

UPDATE 6: That's it — and that's plenty! — for today. Here's the PDF of the opinion in Shelby County. I'll start a new post for that case, and I will also try to get to Adoptive Couple before long. 

Immensely exciting morning at the Supreme Court.

Live-blogged at SCOTUSblog.

UPDATE 1: We're waiting for the University of Texas affirmative action case (Fisher), the 2 same-sex marriage cases (on Prop 8 (Hollingsworth) and DOMA (Windsor), and the Voting Rights Act case (Shelby County). I'm feeling that we're going to get a whole lot of minimalism here. Fisher will be about the peculiarities of the UT program. Prop 8 will fizzle on something technical. Windsor herself will keep her remedy, but DOMA will survive. And the Voting Rights Act will survive. If so, that will be the excitement of no excitement. Get ready.

UPDATE 2: The cert. grants have been announced, and they include review of the President's recess appointment power. The case arises out of Obama's interpretation of what counts as a congressional recess, and involves 3 appointments to the NLRB. Details on the case — NLRB v. Canning — here. More details here.

UPDATE 3: The Court affirms the 7th Circuit in Vance, 5-4, Alito writing: "a supervisor for vicarious [liability] under Title VII only if she has the power given by the employer to take tangible employment actions against the victim." The 4 dissenters are the 4 liberals.

UPDATE 4: Another opinion by Alito, Mutual Pharmaceuticals v. Bartlett. Also 5-4. Federal law about drug warnings preempts state law remedies based on "design defect."

UPDATE 5: In Vance, Ginsburg, dissenting, compares the majority's narrow reading of the statute to Ledbetter, which became a big political issue. Congress subsequently amended the statute. So Ginsburg says: "Congress has, in the recent past, intervened to correct this Court’s wayward interpretations of Title VII.... The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today." I assume the majority has no problem with that. It's statutory interpretation, and if Congress wants this greater liability for employers, it can/should amend the statute.

UPDATE 6: Breyer writes the 7-2 opinion in U.S. v. Kebodoeux: "Registration requirement under SORNA as applied to Kebodeaux falls within the scope of Congress's authority under the Necessary and Proper Clause." SORNA is the Sex Offender Registration and Notification Act. The dissenters are Scalia and Thomas.

UPDATE 7: Fisher! 7-1, only Ginsburg dissenting. Vacated and remanded "because the Fifth Circuit did not hold the university to the demanding burden of strict scrutiny articulated in Grutter and Bakke, its decision afffiming the district court's grant of summary judgment was incorrect." (I'm starting a new post for Fisher and working on reading the case.)

UPDATE 8: The last opinion is UT Southwestern v. Nassar, also by Kennedy: "The Court holds that Title VII retaliation claims must be proved according to traditional principles of 'but for' causation..." This one is 5-4, split as you'd predict a 5-4 split would split. Ginsburg writes the dissent.

UPDATE 9: There will be more opinions tomorrow.

Supreme Court live-blog.

Here. Possible excitement today.

UPDATE 1: An opinion in Salinas v. Texas — PDF — which is about the right not to incriminate oneself ("prosecutors can comment on the silence of an accused who has not yet been arrested").

UPDATE 2: Alleyene: Justice Thomas writes the opinion holding that "Any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury." Joining him are Ginsburg, Breyer, Sotomayor, and Kagan. A 5-4 decision with Thomas and the liberals. Roberts, Scalia, Kennedy, and Alito dissent. PDF.

UPDATE 3: A Kennedy opinion, but not the long-awaited Fisher (the affirmative action case). This is Maracich v. Spears, the Driver's Privacy Protection Act case. Another 5-4 decision. "An attorney's solicitation of clients is not a permissible purpose covered by the DPPA's litigation exception." PDF.

UPDATE 4: Scalia writes for the majority in Arizona v. Inter Tribal Council: "Arizona's proof of citizenship requirement is preempted by the federal law requiring that states use the federal voter registration form." Only 2 dissenters: Thomas and Alito. PDF.

UPDATE 5: And that's it for today. There will be more opinions on Thursday.

Which of the opinions are you most interested in hearing me say something about?
	Salinas v. Texas
	Alleyene
	Maracich v. Spears
	Arizona v. Inter Tribal Council
pollcode.com free polls

Waiting for Fisher....

Another Supreme Court opinion-announcement day... 

ADDED:  First up is American Trucking v. LA, a Kagan opinion. They announce opinions in order of seniority, and Kagan is least senior. Something about trucks... and preemption. [ALSO: This case has a concurring opinion from Justice Thomas saying Congress's statute is not supported by the Commerce Clause, "at least in certain contexts."]

AND: A second opinion, Tarrant Regional Water Dist. V. Herrmann, from Sotomayor, the second-least senior. Something about water... and preemption.

NEXT: Third: Ginsburg's opinion, U.S. v. Davila. "This was a case in which the issue was whether there must be an automatic reversal if the judge played any role in the plea bargaining...  Federal Rule of Criminal Procedure 11 prohibits judges from participating in plea agreements, but another subsection of the rule also provides that a 'variance from the requirements' of Rule 11 is 'harmless if it does not affect substantial rights,' so this one did not come as a huge surprise."

ALSO: "We have gene patenting. The Court holds that natural isolated DNA is not patentable. Synthetic DNA is patentable." This is a very important case. Unanimous. Thomas wrote the opinion, so that means only Kennedy, Scalia, and Roberts are left to have opinions that might come out today. Here's the PDF of the case, Myriad Genetics. It's a unanimous opinion but Scalia concurs to say:

I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature.

AND: That's it for today.

"There certainly are some very exciting days at the Supreme Court! And there are also days like these."

Says Tom Goldstein, summing up on the SCOTUSblog live-blog. That's right after this tidbit of dialogue:

Amy Howe: We have the third and final opinion in the California raisin case....

Comment From Will 
"Raisin" is code for "Prop 8", right?

The live-blog of new Supreme Court opinions.

Going on now at SCOTUSblog.

UPDATE: "Time to roll out the hashtag that one of our readers suggested: #waiting for fisher." Fisher is the affirmative action case we've been waiting for since last fall. There were 2 new cases today, both dealing with procedural matters relating to raising constitutional challenges to criminal convictions.

Any big Supreme Court decisions coming out today?

If so, we'll find out soonest by following the SCOTUSblog live-blogging here.

ADDED: The Court granted cert. in an Establishment Clause case, Town of Greece v. Galloway, about whether "a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity." SCOTUSblog opined that it's "a potentially significant religion case" because "The Roberts case has not done much in that field so far." My instant impression was they granted cert. to reverse and it's obvious (based on precedent).

AND: This chart shows which cases are undecided from each month of the term so far. All the November cases have been decided, but one case remains from October, Fisher v. University of Texas, the affirmative action case. There's also a chart which shows which Justices have written the cases from each "sitting," and that chart makes it appear that Kennedy is writing the affirmative action case.

ALSO: No Fisher today.

The Fisher v. University of Texas affirmative action case is now the only undecided case argued in October.

SCOTUSblog tells us, after live-blogging the announcement of Moncrieffe v. Holder this morning. Moncrieffe, a case about the meaning of "aggravated felony" under the immigration law, was written by Justice Sotomayor, and that makes it extremely likely that Justice Kennedy is writing the hotly anticipated Fisher case:

[T]he Court tries very hard to distribute the authorship of majority opinions evenly not just over the course of the Term, but also within a sitting (the two-week periods from October through April when the Court hears oral argument). So going into today, Justices Kennedy and Sotomayor were the only Justices without majority opinions in October.... Now he's the only one without an October opinion, which leads to the assumption that he is writing Fisher. 

Does this help predict the outcome of the case? Here's my effort, from last October, to read Justice Kennedy at the oral argument. Remember, Texas has a very odd kind of affirmative action, adding an individualized approach, with race as a plus factor, after a facially neutral program that admits the top 10% of students from every Texas high school. At oral argument, Kennedy focused on the detail that the additional race-based selection was done to bring in more privileged black and Hispanic students, because the 10% program tended to admit underprivileged blacks and Hispanics (which reinforced a stereotype about black and Hispanic people). I said at the time (referring to the Court's most recent affirmative action case, Grutter):

So, it seems, the additional affirmative action is needed to get a more varied group of minority students, in which case, the point is to bring in privileged minority students, because these are the students who — in Grutter terms — might provide the classroom benefit of teaching all the students that minority students don't have "some characteristic minority viewpoint." ...

I'm not taking a position on whether UT's admissions policy is good or whether it's constitutional.... All I am saying is that if Grutter is to be applied (and not limited or overruled), an affirmative action program that's all about boosting the most privileged minority students actually makes sense.

Kennedy seemed to have trouble seeing the sense of that at oral argument. He said "So what you're saying is that what counts is race above all," which is missing the point. I'm sure he ultimately understood the point, but I think we saw — in real time — that the point isn't intuitively appealing to him.

That said, Fisher could narrowly reject the odd UT program and leave the more typical Grutter-style affirmative action alone. But Fisher presents an opportunity to overturn Grutter, and Kennedy dissented in Grutter, which was a 5-4 decision with Justice O'Connor casting the deciding vote. O'Connor's successor, Justice Alito was instrumental at oral argument — as I said at the time — in extracting that point about privileged minority applicants receiving the advantage.

So I'll make a rash prediction: a narrow decision, determined by Kennedy and Alito (and maybe Roberts), striking down only the Texas program. Scalia and Thomas concur, complaining that Grutter should have been overruled. Everyone else dissents.

"So the majority is the Court's left, with Justice Kennedy.... The dissent is per Kagan for the Court's left."

SCOTUSblog live-blogging 2 new Supreme Court cases this morning.

I was surprised at the blunt expression "the Court's left." Is that the way we talk now? In class, I take the trouble to apologize for resorting to using the expressions "the liberal side of the Court" and "the conservative side of the Court." It's inappropriate and inaccurate for some reasons, and I don't mean to say that "conservative" and "liberal" applied to the Court mean what they mean in the political context, but it does save time. One could save even more time with "the Court's left" and "the Court's right."

Should we say "the Court's left" and "the Court's right"?
	Yes. Blunt talk is best and the Court is political.
	Yes. It saves time and it's close enough.
	No. It desensitizes us to the inaccuracy of thinking of the Court as political.
	No. It's accurate, but it implies that a political Court is normal or even good.
pollcode.com free polls

The Supreme Court has many options in the Prop 8 case.

How many? Marty Lederman says he'd originally thought there were 5: 1. no standing, 2. uphold Prop 8 on the merits, 3. reject Prop 8 in a way that relates only to California, 4. reject Prop 8 in a way that would also require gay marriage in the 8 states that have civil unions for gay couples, and 5. find a constitutional right to same-sex marriage that would apply throughout the country. Now, he sees 2 more options: 6. dismiss the petition (decide it was a mistake to take the case at all), and 7. vacate  and remand for reconsideration in light of whatever it does in the DOMA case.

Lederman thinks you can't tell from the oral argument, in which it seemed that at least some of the Justices were struggling to try to figure out what to do, but he thinks 2, 3, 5, and 7 are unlikely and 6 is also pretty unlikely.

So what about 1 (standing)?

... Justice Kennedy, expressed concern that if the Court were to hold that the Proposition 8 proponents lack Article III standing because they are not agents of the state of California... such a ruling might invite executive officials in California to effectively “thwart the initiative process” (Justice Kennedy’s words), simply by refusing to appeal lower court rulings declaring that such initiatives are invalid....

And 4 (reaching the merits and covering 8 states)?

To be sure, Justice Kennedy stated that it would be “very odd” for California to in effect be “penalized” for being “more open to protecting same-sex couples than almost any State in the Union.”  To like effect, Justice Sotomayor said that there would be an “irony” if “States that do more [for same-sex couples] have less rights.”...

But that objection doesn’t quite capture the fundamental nature of the eight-state argument—namely, that it’s an underinclusiveness argument of the sort the Court often invokes to explain why a state’s defense of a law is inadequate. 

Actually, everything seems unlikely and unsatisfying... and yet there will be a decision. I note that there could be an outcome without any rationale commanding a majority. That should be considered the 8th possibility. The 8th option for Prop 8.

"5 Justices Seem Skeptical of Ban on Benefits to Gay Spouses."

The 2 hours of oral argument in the DOMA case have ended. Adam Liptak summarizes:

“The question is whether or not the federal government under a federalism system has the authority to regulate marriage,” Justice Kennedy said during oral arguments, suggesting that the question should be left to the states. He disagreed with the contention that the federal law simply created a single definition for federal purposes, noting that same-sex couples are not treated the same as other married couples. “It’s not really uniformity,” he said....

It should please conservatives to see an opinion based on the lack of an enumerated federal power. Unlike yesterday's Prop 8 case, the legal problem isn't only about constitutional rights. There's a question of congressional power (which should have been addressed 15+ years ago).

Chief Justice John G. Roberts Jr. and some of the other conservative justices expressed irritation that the case was before them at all because an appeals court threw out the law’s definition of marriage and the Obama administration agreed with that ruling but appealed it anyway. President Obama has declared that the Defense of Marriage Act is unconstitutional and refuses to defend it in court, though the government is continuing to enforce it until the Supreme Court offers a judgment.

Chief Justice Roberts called that a contradiction by the president. “I don’t see why he doesn’t have the courage of his convictions” and not enforce the law if he thinks it is unconstitutional, the chief justice said.

Ha ha. That's what I said in my post earlier this morning: "They're lying back waiting for the Court to do the difficult work.... It might be that the Court shouldn't rescue the administration from its politically uncomfortable position." If the matter belongs in the political area, let them sit in their own mess.

AND:

Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights.
— SCOTUSblog (@SCOTUSblog) March 27, 2013

ALSO: If the 4 liberals "see... gay rights" and the 5th vote says there's no enumerated power, there can be a result without an impact on what states can do. The federal government would have to start recognizing same-sex marriages from the states where they are legal, and there wouldn't be any rights-based doctrine applicable to the states. There would be an open question about the part of DOMA that authorizes states to deny recognition to ssms from states that record ssms. The argument for an enumerated power there is somewhat different. If that part of DOMA were stricken down too, there is still an argument that the states could deny recognition to ssms performed elsewhere. In fact, it's an argument DOMA tried to resolve. So somewhere down the line, it's possible that ssm would apply everywhere as long as couples travel to a state that permits them, which would be very easy to do.

"Breaking: key vote Kennedy VERY uncomfortable striking down #prop8."

"Suggests dismissing case. Would leave in place 9th Cir pro-#ssm ruling."

There are not 5 votes to strike down #prop8 and recognize equal right to #ssm at this time

SCOTUSblog tweets from the oral argument.

Note the significance of "Would leave in place 9th Cir pro-#ssm ruling." Prop 8 will still be stricken down, because that's what the 9th Circuit decided. I want to see the transcript (and hear the oral argument) before reacting too much to these characterizations.

So Kennedy performed the Theater of the Very Uncomfortable. That could set the stage for exercising the very painful duty of pronouncing a law a nullity. It's supposed to hurt! It's not what we want, but what we must do.

(Calling judicial review a "painful duty" has a long pedigree.)

MORE: Here, from SCOTUSblog's Tom Goldstein:

The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy. For the more liberal members of the Court, there was no clarity on how broadly they would rule.

But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail. He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new. He also noted the doubts about the petitioners’ standing. So his suggestion was that the case should be dismissed.

If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms. First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing. That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8....

Second, the Court may dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit’s decision.

But of course Kennedy would hang back in contrast to the 4 liberal Justices. His difference from them doesn't mean he won't join them in the end.

I'll say more when I've heard the argument myself. 

"Anyone entering the Supreme Court’s chamber Monday morning expecting constitutional drama over the right to vote had to come away quite disappointed."

"It took all of fifty minutes of a one-hour argument to get to any constitutional issue, most of the Justices wanted to focus on what 'may only' means in a federal law...."

Since Congress only specified that states “may require only” some information, and gave them explicit permission to find ways to verify eligibility, Arizona has argued that the two mandates can exist side by side....

Alito... sought to drive home a worry about states’ ability to ensure voter eligibility by outlining a hypothetical.  A boy, the Justice suggested, who looks to be thirteen years old rides up to a registration office on his bicycle, wearing a T-shirt from a middle school, and seeks to register.  Alito then asked:  “Can the state require him to show some proof of age?"

"41 states prohibit same-sex marriage. But only 20 of those 41 states have filed briefs in support of the constitutionality of Proposition 8."

"Indiana is the lead party on a brief for 19 states, and Michigan filed a brief of its own."

Compare this level of state participation with, for example, the amicus brief filed by all 49 other states in Maryland v. King (to be argued February 26), in support of Maryland’s argument that a state does not violate the Fourth Amendment by collecting and analyzing the DNA of persons who have been arrested for, but not convicted of, a criminal offense....

It is further significant, I think, that in 12 of those 21 non-filing states, constitutional amendments prevent the recognition of same-sex marriage via the ordinary political process.  All but one of those amendments was ratified from 2002 through 2008, in anticipation that popular majorities might soon support a change in state law... 

Waiting for an order granting Supreme Court review in a same-sex marriage case. [UPDATE: Granted!!]

They're live-blogging the anticipation over at SCOTUSblog.

The Conference is over for today; that was some time ago. What's going on now is composing orders, if any are to be released today. Simple grants are easier to write than, say, consolidated grants among several picked cases....

I expect the Court to act today on the gay-marriage petitions for two reasons. First, it has to rule on the petitions at this Conference if they are going to be argued in March. Otherwise, it has to wait until April. And the Court would prefer to have more time between the argument and when the Court ends the Term in late-June.

UPDATE:  "Prop. 8 is grant[d]. So is Windsor. Those are the only two marriage cases granted."

Prop. 8 is granted on the petition question -- whether 14th Am. bars Calif. from defining marriage in traditional way. Plus an added question: Whether the backers of Prop. 8 have standing in the case under Art. III.

In Windsor, the government petition (12-307) is the one granted. In addition to the petition question -- whether Sec. 3 of DOMA violates equal protection under 5th Amendment, there are two other questions: does the fact that government agreed with the 2d CA decision deprive the Court of jurisdiction to hear and decide the case, and whether BLAG (House GOP leaders) has Art. III standing in this case.

AND: "The Court... has agreed to take up virtually all of the key issues about same-sex marriage, but has given itself a way to avoid final decisions on the merits issues."