2 PM: Live blog anticipating orders, hopefully regarding same-sex marriage (SCOTUSblog)

[JackBeck]

We anticipate orders this afternoon, including likely in the same-sex marriage cases. Our list of “Petitions to watch” for this Conference is here. Once you see the window and our initial welcome, we ask that you do not refresh your browser. Updates will appear without the need for refreshing.

You can follow along at: http://www.scotusblog.com/2012/12/live-blog-anticipating-orders-hopefully-regarding-same-sex-marriage-sponsored-by-bloomberg-law/

[JackBeck]

1. So far:

1:59 Tom: Hi everyone. To answer the questions on your mind: (1) we do not know when the Court will act, and (2) we do not know whether it will issue orders in the same-sex marriage cases. Patience.

2:01 Tom: For a while, this is going to be one of the most boring live blogs, ever, anywhere on the Internet

2:04 Tom: We’re here to report that nothing is happening. Though that overstates the level of activity.

2:04 Lyle: A handful of reporters are gathered in the press room, but there is no word from the Court staff one way or the other. However, the fact that no order is out by this hour is a strong indication (1) that something is coming, (2) it is probably one or more grants, and (3) it is taking some time to compose whatever is under consideration.


2:05 Tom: The point of starting so early isn’t because we think something will happen now, or in 15 minutes, or 30 minutes.

2:06 Tom: But it might. We’re in the window of possibility. And having the liveblog up means that you don’t have to hit refresh over and over, and over.

2:07 Tom: So this is a favor to the refresh button on your computer.

2:07 Lyle: To answer a question about the new Nevada case (12-689). So far, the Court is handling that in the normal fashion. A time has been set for a response, and there is no indication it was even considered at today's Conference.

2:09 Tom: In terms of what might happen this afternoon, well that counts as genuinely exciting and interesting, and a little bit of a mystery.

2:10 Lyle: The Court has not denied the Perry case (Prop. 8 from California). It is one of the 11 petitions pending now. It may or may not appear on any order.

[JackBeck]

2. 2:10

Lyle: To answer another question: if there is no order today on same-sex marriage, the next chance for something would be the Monday orders, out at 9:30. After that, no orders on new cases are likely until January 4.

[JackBeck]

3. 2:13

Lyle: 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.

[JackBeck]

4. 2:14

Lyle: Almost everyone who is paying attention thinks that, when the Court acts, there will be a grant on DOMA; which case, of course, is up for grabs. There is no consensus, that I have been able to detect, on the Prop. 8 case or on the AZ "Section O" case.

[JackBeck]

5. 2:15

Tom: 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.

[JackBeck]

6. 2:17

Lyle: We on site expect that we will have a paper order before it goes on the Court's website; not a big interval, but likely a few minutes in advance. Chances are you will hear here first.

[JackBeck]

7. 2:19

Lyle: No cases have been denied yet on the marriage issue. The common expectation, though not predictably certain, is that if any marriage case is granted, all of the rest will just sit until the rulng comes out. It would be a surprise if any of the others are denied outright. BTW any orders out today probably will not include any denials; denials usually come in the Monday orders.

[JackBeck]

8. 2:19

Tom: Second, the Justices have likely had enough time now to decide what to do with the petitions. Last Friday was the first time they met about them. Over the past week, before meeting today, they likely were able to figure out the details.

[JackBeck]

9. 2:20

Kali: To answer a question, we have 4,672 readers right now.

[JackBeck]

10. 2:22

Tom: And the details are complicated. In fact, they are complicated enough that it wouldn’t be shocking if the Court issued orders early next week.

Lyle: Question about our reference to the Nevada case as the "more basic" one. In this field, any shorthand is bound to disappoint or upset someone. What we meant was that the Coalition that sponsored the Nevada marriage amendment are telling the Court that that case raises the fundamental question of whether homosexuals, as such, have a constitutonal right to marry. We understand that there is a dispute about whether the Nevada case does, in fact, raise that issue, but that is the way the petition characterized it. We will be sorting all of that out as time goes on.

[JackBeck]

11. 2:24

Lyle: The DOMA cases take a bit of sorting because there are eight of them, and there are subsidiary questions about which ones raise which issues, how to align the parties and the lawyers, and whether some involve issues of standing, and other procedural niceties. We expect any order to be clear enough, but it won't necessarily be simple.

[JackBeck]

12. 2:25

Tom:
The Court has to decide which kind of case(s) to take up – DOMA, California’s Prop 8, or the Arizona statute. And among the DOMA cases, it has to decide which petition to grant.

It takes four votes to do any of those things. So getting everyone on (roughly) the same page takes some time.

[JackBeck]

13. 2:27

Lyle: Many readers are focused on Prop. 8. The situation right now: it remains pending, has not been granted, has not been denied, may not appear at all on any orders list today or Monday. If there is nothing by Monday, the 9th Circuit's stay of is decision remains in place, and no marriage licenses can be issued in CA to same-sex couples.

[JackBeck]

14. 2:29

Lyle: If we are not answering your questions, it may be that we just have not seen them. Our readers today are blessedly voluble and inquisitive. We are doing what we can to keep up.

[JackBeck]

15. 2:30

Lyle: If we have not had an order or orders out of the Court by about 5:30, I would guess we won't get any today. That is not a hard curfew, but just a likelihood based on experience.

[JackBeck]

16. 2:31

Tom: In terms of what’s going on inside the building, here is how the process works. After the Justice finish meeting, the junior Justice (Kagan) tells the Clerk’s Office what the Court has decided to do. The Clerk’s Office then drafts orders. Those are reviewed by the Chief Justice for approval. The Clerk’s Office then publishes the final document.

[JackBeck]

17. 2:33

Lyle: Thanks for a question about other cases on the Conference list. There is a really big business case, on the legality under antitrust law of so-called "reverse payments" by brand name drug companies to generic drug makers to keep the generics off the market for a time. The Court also is taking another look at the case involving the woman who tried to poison her husband's paramour, and got prosecuted for violating a global weapons treaty. Also a very interesting case about legal immunity for social workers who take children at risk out of their home.

[JackBeck]

18. 2:34

Lyle: And, for those of you who simply cannot survive if the Court doesn't take another arbitration case, there is a good one on the list on what kind of arbitration clause is needed to command class arbitration.

[JackBeck]

19. 2:35

Tom: So there can be delays in the process. First, the meeting can take a while. As discussed, working through what to do with the petitions is complicated .And the Justices have other things to talk about. They need to discuss and vote in the merits case that was argued Wednesday – Chafin v. Chafin: http://www.scotusblog.com/case-files/cases/chafin-v-chafin/?wpmp_switcher=desktop.

[JackBeck]

20. 2:37

Lyle: On Prop. 8 once more: the 9th CA stay is still in place. The mandate has not been issued in that case. Everything is on hold until SCt does something or other on the pending petition (12-144). City of San Fran has asked 9th CA to give 24 hours notice before it issues the mandate (after SCt denies or rules), so city can prepare for the expected crush at City Hall.

[JackBeck]

21. 2:38

Lyle: The rule of thumb on grants for cases to be heard this Term is the end of January.

[JackBeck]

22. 2:39

Tom: As Lyle points out, are also some other serious cert petitions that need to be addressed. Those really cannot be put off, both because that isn’t the Justices’ style, and because (as noted) this is the last Conference at which they can grant cases to be argued in March (which has 6 argument slots unfilled).

[JackBeck]

23. 2:40

Lyle: The Court has NO obligation to act now or at any time on any pending petition, marriage or not. At some time, it will feel a duty to dispose of the cases brought to it. But it has an incredibly wide discretion as to when and how. It has almost complete control over its docket.

[JackBeck]

24. 2:41

Lyle: Eveb a shift along the San Andreas fault would not be likely to lead the 9th CA to lift its stay before there is something definition from SCt on Prop. 8.

[JackBeck]

25. 2:42 - 2:44 (Not marriage related)

2:42 Lyle: Class arbitration, to which this Court is quite hostile, means that a consumer whose claim against a company (e.g., stinky laundry machines) is so small in dollar terms that the consumer wants to line up others with the same grievance, and they all sue together. It does not mean "class" as in social status; it means a version of collective litigating.

2:44 Kali: A reader suggests listening to the oral argument in Chafin v. Chafin while you wait. The oral argument audio is available here. http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-1347 Or if you fancy another case, audio of all the oral arguments thus far this term is available here: http://www.supremecourt.gov/oral_arguments/argument_audio.aspx

2:44 Lyle: The chemical weapons treaty case is, in fact, the same Bond case that was before the Court two Terms ago. It is back now after the 3rd CA upheld her conviction. SG urged the SCt not to take it, but so far, after looking at the case at several Conferences, the Court is still pondering what to do.

[JackBeck]

26. 2:44 - 2:46 (not marriage related)

2:44 Tom: Lots of readers from San Francisco today. Is anything up?

2:45 Lyle: The pending arbitration case is Oxford Health Plans v. Sutter (12-135), from the 3rd CA.

2:46 Kali: If you want to read the briefs in Oxford Health while you wait, we've got your covered: http://www.scotusblog.com/case-files/cases/oxford-health-plans-llc-v-sutter/

2:46 Lyle: To Dane's question: Yes, there are a few lingering areas where the Court has no choice but to rule on a case on the merits. Examples are legislative redistricting and some voting rights cases

[JackBeck]

27. 2:47

Lyle: A question about petitions lingering for years. The Court once had a case involving a Virginia death row inmate who was too insane to be executed, but lived for years; the Court just held it on its docket until he had died. We do not expect marriage cases to linger for years, however.

[JackBeck]

28. 2:49 (lol)

Tom:
(We keep entering things, just so you hear the clicking so have to come back and look, just in case the Court did something.)

2:49
Tom: See?

[JackBeck]

29. 2:51

Lyle: Yes, there is only one DOMA case raising the Tenth Amendment petition. That is Massachusetts' petition (12-97).

[JackBeck]

30. 2:52

Lyle: Re a possible grant on Prop. 8 on the standing issue: If that were the only grant, it would not tell us anything about the DOMA cases. There is at least one DOMA case in which no one contends there is a lack of standing: Golinski's case.

[JackBeck]

31. 2:54

Kali: Responding to a request for the petition in the Nevada case (Coalition for the Protection of Marriage v. Beverly Sevcik), yes, we have it: http://sblog.s3.amazonaws.com/wp-content/uploads/2012/12/Nevada-marriage-petition.pdf

[JackBeck]

32. 2:55 - 2:58 (info on other petitions)

Now for something completely different. Following up on Lyle’s earlier entry, here is some more detailed info on the other petitions before the Court today.

2:56 Tom: (Everyone should hope that the Court acts soon. Because when we run out of Supreme Court topics to discuss, I start with the show tunes.)

2:57 Lyle: A grant of cert does not necessarily mean that standing is settled. The Court sometimes postpones that kind of gatekeeping issue to the hearing on the merits.

2:58 Tom: First up is the Sunbeam Products case, in which the question is: Under 11 U.S.C. § 365, whether a licensee retains the ability to use a debtor’s trademarks after the corresponding intellectual-property license is rejected in bankruptcy.

2:58 Lyle: The Court may be slowing down its order today just to frustrate the evening plans of a certain magazine correspondent. :- (

2:58 Tom: So if you love ads for mixers in times of economic turmoil, the Sunbeam case is for you.

[closeupready]

33. Are you taking requests? Can you sing something from the Sound of Music?

[JackBeck]

35. Go to SCOTUSblog and submit a request!

I'm more of an oldschool Godpsell, Pipin kind of gay.

[JackBeck]

34. 3:00

Lyle: The only case from which we expect Kagan would recuse is the First Circuit case (Gill). If the Court grants that one, then her recusal would be noted as part of the order.

[JackBeck]

36. 3:01 (showtunes have been brought out)

3:01
Tom:

3:01
Lyle: Re "standing." It is not exactly a "standing" issue in the classic Article III sense, but there is a dispute in several of these petitions whether a party who won below can file a cert petition. There is an explicit standing issue in Gill, in the traditional Article III sense: the House GOP (BLAG) contends that the Gill plaintiffs who want to file a joint federal tax return do not have standing to raise that issue. Gill lawyers insist they do

[JackBeck]

37. 3:02 (Madonna video and info about possible Kagan recusal)

3:02
Tom:

3:02
Lyle: On the Kagan likely recusal in Gill: She participated in discussions at DOJ on the briefing on that case and on another DOMA case in the California state and federal courts. That is enough to justify, if not require, recusal.

[JackBeck]

38. 3:04 - 3:06 (social worker case on Conference list)

Lyle: We are all friends at the blog. Why do you ask?

3:05 Lyle: The social worker case on today's Conference List is City of New York v Southerland (12-215), from the 2d CA.

3:06 Kali: Materials for that case are here: http://www.scotusblog.com/case-files/cases/city-of-new-york-v-southerland/

[JackBeck]

39. 3:07 - 3:08 (more on Kagan)

Lyle: If Kagan is recused in the Gill case, it still could be granted and it still would take 4 votes to grant. Then there would be only an 8-Justice Court to decide it. That's an argument against taking it, although the House GOP (BLAG) still says that Gill is its preferred petition grant.

Lyle: Kagan did not take part, so far as we know, in the Golinski case. We think she would participate if that is the grant. That was not the California case to which I referred.

[FreeState]

40. That was my question!

I love it when you ask a question and they answer - the live blog rocks!

[JackBeck]

44. Awesome! Great question :)

[JackBeck]

41. 3:09 (info on other pending cases)

Tom:
Next up are three petitions about “reverse payments” in drug patent lawsuits. (Disclosure, we represent the plaintiffs in two of them.) Federal Trade Commission v. Watson Pharmaceuticals; Upsher-Smith Laboratories v. Louisiana Wholesale Drug Company; Merck & Co. v. Louisiana Wholesale Drug Company http://www.scotusblog.com/case-files/cases/merck-co-v-louisiana-wholesale-drug-company-inc/

Tom: The cases involve a situation in which a brand name drug company and generic drug company settle a patent suit, with the brand paying money to the generic and the generic agreeing to stay out of the market for some time. The question is whether that can violate the antitrust laws.

[JackBeck]

42. 3:10

Lyle: If Gill is granted and splits 4-4, that means that the 1st CA decision is summarily affirmed, and DOMA Section 3 is invalid in the 1st Circuit.

[JackBeck]

43. 3:11 - 3:12

Lyle: If Gill is granted and splits 4-4, that means that the 1st CA decision is summarily affirmed, and DOMA Section 3 is invalid in the 1st Circuit.

Tom :The government filed a cert petition saying there can be liability, as did two of the drug companies arguing the opposite position.

3:12
Lyle: The Court meets in an absolutely lovely and very well furnished conference room. No one in the room except the Justices, and it is Kagan's job to keep track to later pass on what has been done. The room is very secure; we pressies get in for a look now and then, when nothing is going on in there.

Tom: (Can I just say that today’s readers seem to have a much better sense of style than that health care crew did.)

[JackBeck]

45. 3:13 BIG NEWS

Lyle:
We have the orders now. Prop. 8 is grantred. So is Windsor. Those are the only two marriage cases granted.

[JackBeck]

46. 3:14 Prop 8

Lyle: 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.

[JackBeck]

47. 3:16

Kali:
Our case page for Prop 8. is here: http://www.scotusblog.com/case-files/cases/hollingsworth-v-perry/

[JackBeck]

48. 3:17 DOMA!

Lyle: 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.

[JackBeck]

49. 3:18 (other cases, one which Alito recuses himself)

Lyle:
There are three other grants: a case on preemption of city towing laws (12-52), the Oxford Health case on class arbitration (12-135), and the FTC petition on the brand name reverse payments issue.

3:18
Lyle: Justice Alito is recused in the FTC reverse payments case, meaning that case will be decided by an 8-J. Court.

[JackBeck]

50. 3:21 Prop 8 related

Lyle: Trying to sort this all out, it is clear that the Court has agreed to consider the merits case in Prop. 8, because that is what the petition presented as its question, but that it is also going to address whether the proponents had a right to pursue their case. If the Court were to find that the proponents did not have Art. III standing, that is the end of the matter: there would be no review on the merits of Proposition 8, or of the 9th CA decision striking it down.

[warrior1]

51. thanks for the info

[JackBeck]

52. 3:23 -3:24 Important DOMA update

Lyle: Trying to sort out DOMA: The case has agreed to consider the merits issue of the constitutionality of DOMA Section 3, it has also given itself the option of not deciding that issue. If it finds that neither the Executive Branch could bring its appeal, and that BLAG lacked Art. III standing, then presumably both of those petitions would be denied. At that point, then, the Court might have to consider whether it wants to hear another DOMA case. But that probably would not be done in time for this term's close.

3:24
Kali: A quick reminder that we will have commentary on the grants from Neal Devins (William and Mary), Bill Eskridge (Yale), Bill Duncan (Marriage Law Foundation) and Kenji Yoshino (NYU). Hopefully later tonight or over the weekend.

[JackBeck]

53. 3:25 - 3:26 Lyle's overview of what this all means

Lyle: There is a good deal of complexity in the marriage orders, but the bottom line is this: the Court has offered to rule on Prop. 8 and on DOMA Section 3, but it also has given itself a way not to decide either case. That probably depends upon how eager the Justices are to get to the merits; if they are having trouble getting to 5 on the merits, they may just opt out through one of the procedural devices they have offered up as potentials.

3:25
Kali: The electronic order list is still not up. We will post it when we have a link.

Lyle: BTW Although the Court is ruling on Prop. 8, there is nothing in the order that would lift the 9th CA's stay. So marriage licenses in Calif. will have to wait until this case is decided.

[JackBeck]

54. 3:28 - 3:29

Lyle: On the jurisdictional issue the Court raises re the government petition in DOMA (12-307): the SG has argued that, because DOMA is still on the books until its constitutionality is finally decided, it retains an obligation to enforce Section 3, so the 2d CA ruling involves a judgment against the United States, which gives it a right to appeal to the SCt, even though it agrees with the substantive outcome of the 2d CA decision.

3:29
Tom:
The arguments very likely will be March 25-27, and a decision is very likely around June 27.

Lyle: The Court's two orders on the marriage cases do not include a word about two other issues that lurk in the cases: is Baker v. Nelson still controlling and thus requires dismissal of marriage pleas by gays and lesbians, and what is the constitutional standard of review on gay rights issues. But both almost certainly will be argued in the briefing and at oral argument.

[JackBeck]

55. 3:31

Lyle: It is obvious now why the Court took as much time as it did: the selection process must have been rather challenging, and the compositon of the final orders equally so. The Court, one might say in summary, 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.

[JackBeck]

56. 3:37 - 3:38 (my final post from SCTOUSblog)

Lyle: As we said earlier, the Court's orders on marriage deal only with two petitions -- 12-144, Prop. 8, and 12-307, the US petition on DOMA. No other petition is mentioned in the orders. That presumably means all of the others will be on hold until the Court decides these cases. That includes AZ's Section O case. Also, no surprise, there is nothing here on Nevada marriage; that case won't be ready for consideration for weeks, and, in fact, probably will just be held along with the others not acted upon today -- unless, outside chance, there might be a denial on Monday in some of them; I would not expect that.

3:37 Kali: To answer a question, the Court does not live stream oral arguments. Written transcripts will be available the day of the arguments (usually they are posted in the early afternoon). Audio of the arguments will be available on Friday of the week the cases are heard (March 29th if Tom's comment above is correct).

3:38 Lyle: It is our expectation that the Court will hear the marriage cases in the March sitting, which runs from March 18 through the 27th.

3:38 Lyle: Proposition 8's backers challenge the 9th CA decision as written and, impliedly, challenges Judge Walker's broader decision in the District Court.