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Monthly Archives: May 2012

On same-sex marriage issue, questions remain on administration’s stance

Despite all the headlines that were made when President Barack Obama voiced his support for same-sex marriage, the views the president expressed were personal and did not reflect the views of the administration. But as major cases involving the rights of same-sex couples to marry and receive federal benefits head to the U.S. Supreme Court, the administration may have to make a more affirmative statement about its official stance on the issue.

Obama, in his comments to ABC News last week, was careful to clarify that he believed that issues involving the legality of same-sex marriage should be worked out state-by-state. A careful parsing of Obama’s words revealed, according to SCOTUSblog’s Lyle Denniston, “suggests strongly that he is not committed to making same-sex marriage a right protected by the Constitution.”

Meanwhile, the Wall Street Journal’s Jess Bravin notes, high profile cases – including the challenge to California’s Proposition 8 – are expected to be taken up by the Supreme Court as soon as later this year. In that case, as well as a case by legally married Massachusetts residents suing to receive federal benefits, could result in increased pressure on the White House.

Should the Court take up the cases, Obama “will surely be asked by advocates for LGBT [lesbian, gay, bisexual and transgender] rights to support a decision upholding a federal constitutional right to same-sex marriage, which would take it out of the hands of the states,” Theodore Olson, one of the attorneys leading the challenge to Prop 8, told the WSJ.

First Lady impacts the fashion of law

First Lady Michelle Obama has become a style icon, impacting the fashion industry in ways not seen since Jacqueline Kennedy occupied the same residence.

But Obama, who is also a lawyer, is also impacting the fashions of high powered women in law firms across the country.

No longer are female power lawyers bound to the uniform of boxy suits and drab colors like black or brown or navy. Now high powered women sport attire full of color, prints and textures – whether they come from Barney’s or Old Navy.

As the Wall Street Journal observes:

“A pedigreed lawyer, Ms. Obama mixes high fashion with low—as do many working women these days. Her ease in baring her shoulders at state functions and her willingness to wear vivid prints, curvy shapes and fashion-forward designs has freed other women to do the same. ‘I think she is allowing women to be more brave and trust themselves more,’ says [fashion designer Rachel] Roy.”

Court asked to remove erroneous info from opinion

To err is human. But when the nation’s highest court receives erroneous information in a case – and even cites the flawed data in its opinion – what, if anything, should the Court do about it?

That is the situation the Supreme Court is facing now in connection with its ruling in the immigration case Nken v. Holder. In that case Justice Department argued that immigration officials “facilitate” the return of immigrants who successfully appeal removal proceedings. While the Department has since changed its policies to do just that, at the time the argument was made that was not the case.

But Chief Justice John G. Roberts, Jr. cited the claim in the opinion to note that while deportation is a burden, it is not “categorically irreparable.”

Now a group of immigration advocates have filed a letter with the Court asking for it to change its opinion. The coalition – comprised of the American Immigration Lawyers Association, the National Immigrant Justice Center, the National Immigration law Center, and Public Counsel, among others – said that lower courts are still relying on the erroneous information in the opinion.

The Justice Department filed a letter expressing regret at the situation, but stating that because the opinion matches current policy, no further action is needed.

SCOTUSblog’s Lyle Denniston notes that making changes to opinion after they are issued is rare and can be problematic – particularly when the bound volume of the case is already out. It does occasionally happen, though. The last time was four years ago, when the court changed the wording of a death penalty case Kennedy v. Louisiana.

You hear the one about the SG, the cough and the bad reviews?

In the days after the Supreme Court heard oral arguments in the healthcare challenge and again after the Arizona immigration law case, there was a lot of chatter among Court watchers. And a lot of it involved one question: Just how bad was Solicitor General Donald B. Verrilli, Jr.’s performance?

As the New York Times’ Adam Liptak points out in his piece yesterday, Supreme Court oral advocacy is usually not a spectator sport, at least not to the extent that it was when it came to Verrilli’s performance at the podium in March and April. But after the healthcare case, some observers skewered his performance as if he were a quarterback who choked and got repeatedly sacked at the Super Bowl.

Verrilli did choke a little – literally – at the start of the second day of arguments, coughing and needing to pause to take a drink of water in an effort to clear his throat of something. That problem only lasted briefly, but it proved to be a metaphor to how some saw his entire performance, spurring headlines like: “Obama’s Solicitor General Coughs, Stumbles, Stutters Through ObamaCare Defense.”

Others cut right to the chase, with headlines like the one on Mother Jones’ website: “Donald Verrilli Makes the Worst Supreme Court Argument of All Time.”

The critiques of his performance had the media on high alert once the immigration case came up. When at one point Justice Sonia M. Sotomayor suggested that Verrilli’s argument was “not selling well” with the justices, the press made a little collective gasp. Here we go again, we thought. We were right. The reviews were not good.

Liptak pointed out that in the court of public opinion, the jury was split. Members of the Supreme Court bar defended Verrilli, saying he had a very tough job to do, and he rose to the occasion.

“It always looks bad when the justices aren’t buying what you’re selling,” Ted Olson, veteran Supreme Court advocate and former solicitor general,  told Liptak. “Don had very, very difficult cases. That hand was dealt before he got there.”

Supreme Court not as popular as it used to be

In the court of public opinion, the U.S. Supreme Court isn’t faring too well.

Approval numbers for the Court have hit a half-century low, according to poll released this week by the Pew Research Center. The survey shows that only 52 percent of Americans rate the Court favorably, a drop from 58 percent in 2010.

At the same time, 29 percent rate the Court unfavorably, a jump from 25 percent in 2010.

Contrast 1994, when 80 percent of the public rated the Court favorably, and only 16 percent had a negative view.

The Court’s dwindling popularity is not a partisan issue, according to the poll: 56 percent of Republicans, and 52 percent of both Democrats and independents gave the Court a favorable rating.

On the issue of the health care law specifically, the public is deeply divided: 41 percent of those surveyed said they approve of it, while 49 percent disapprove.

But within those camps, views of the Court were similar. Among the health care law’s supporters, 52 percent have a favorable view of the Supreme Court, while 34 percent view it unfavorably. Among the law’s opponents, 55 percent rate the Court favorably, and 28 percent gave an unfavorable vote.

Court will be Supreme presidential campaign issue

As President Barack Obama prepares to formally launch his reelection campaign and presumptive Republican presidential nominee Mitt Romney continues to stump, expect the Supreme Court to be a major campaign issue.

Two very high profile cases – the challenge to the federal health care law and the challenge to the Arizona immigration law authorizing local and state police with immigration enforcement powers – will be decided before the election, reminding voters of how important the Court is. And equally headline-grabbing cases – dealing with affirmative action in colleges and perhaps California’s same-sex marriage ban and the Defense of Marriage Act – lie on the horizon for the justices to take up next term.

All this comes at a time when the Court is nearly equally divided ideologically. And four of the nine justices are over the age of 70: Justices Ruth Bader Ginsburg (79), Antonin Scalia (76), Anthony Kennedy (75), and Steven Breyer (73).

This week Obama indicated that he is fully aware of the major role the Court will play in the campaign.

“There are going to be some Supreme Court appointments probably if you look actuarially for the next president,” Obama said at a fundraiser with former President Clinton, according to the Washington Examiner. “There’s so much at stake here.”

Romney has already spoken about the importance of Supreme Court appointment power, and pledged to nominate judges with ideologies in line with the Court’s most conservative jurists.

(Romney photo by Gage Skidmore)

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