Bench Memos

The Supreme Court’s New Term

This coming term of the Supreme Court promises (or threatens) a number of important cases. In my judgment, by far the most important are the not-yet-granted cases presenting the questions whether the Defense of Marriage Act and California’s Proposition 8 somehow violate the federal Constitution.

If the Court fails to reverse the adverse decisions below—if, in short, it fails to affirm the proposition that the Constitution does not speak to the question of same-sex marriage but that it (the Constitution) instead leaves that matter to the political processes for decision—I believe that it will ignite a decades-long firestorm that will make Roe v. Wade’s disruption of American politics appear minor by comparison.

Among other things, as I have explained on Prop 8 (here and here) and on DOMA, there is no coherent way for the Supreme Court to uphold either of the decisions below without necessarily compelling broader invention of a federal constitutional right to same-sex marriage.

I expect to have a lot more to say about these cases. But in the near future posts I hope to turn my attention to two other important cases in which the Court will hear oral argument in its opening October sitting: Kiobel v. Royal Dutch Petroleum, which presents the question whether the Alien Tort Statute applies extraterritorially, and Fisher v. University of Texas, in which the Court will decide whether a state university’s use of race in undergraduate admissions decisions violates the Equal Protection Clause.


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